Sentencing Regrets, Too Late (Update)

District of Nebraska Senior Judge Richard Kopf called it his ““terrible sentencing instinct,” when he banged a bank robber with a long sentence. That bank robber was Shon Hopwood, who is now a law professor at Georgetown.

Judge Rosemarie Aquilina was lauded for her intemperate words when sentencing Larry Nassar, from wishing him prison rape to condemning him to life in prison, even though that particular sentence was not within her authority. This was a show of “empathy” for Nassar’s victims, and a reflection of societal outrage. Judge Aquilina’s words conveyed the blood lust that many felt. Sure, her words were harsh, but isn’t that what a judge should do when that’s what people want?

Judge Aaron Persky sentenced Brock Turner to six months incarceration, leading to national cries of outrage and a campaign by a Stanford law prof, Michele Dauber, to have him recalled as a judge so that all judges learn that they either be as harsh as Dauber and her mob demand or suffer the consequences.

Baker was not known for harsh sentences. In fact, she had a reputation for the opposite. The first black woman appointed to the Circuit Court bench, Baker was often accused of being soft on crime. She angered the St. Louis circuit attorney for throwing out felony convictions for lack of evidence. Her penalties in drug cases were decried as too lenient. Months before Bostic’s crimes, Baker had sparked outrage for sentencing a drunk driver who killed two teenagers to probation rather than prison.

The judge was Evelyn Baker, and she wasn’t one of those hanging judges. But in the 1997 case of Bobby Bostic, she let her anger get the best of her.

It was the winter of 1997. Bostic had been found guilty of committing a series of armed robberies in his own neighborhood when he was only 16. His victims had come to his side of town in a spirit of giving, carrying donations for Christmas. Bostic and his 18-year-old friend Donald Hutson had held them up at gunpoint. Two men in their 20s handed over their money but were shot anyway. The bullets grazed them, but they survived.

After being swiftly arrested, Bostic refused a plea deal, insisting on going to trial and pleading not guilty. The jury convicted him on 18 charges — a total of 241 years. The prosecutor asked Baker to impose them consecutively. “These were good-hearted people, all of them” he said of the victims. “And they ran into two mean-hearted men. They’re not boys, they’re men.”

It’s not unfair to say that Bobby Bostic wasn’t the kind of guy you would invite for dinner. Shooting at, if only grazing, the two victims who gave up their money is a really bad thing to do. That makes Bobby Bostic a bad dude. Not the worst dude, but a bad one nonetheless. Judge Baker didn’t miss this point.

But on [sentencing] day, it was Baker who was angry. Bostic had stormed out of her courtroom after the verdict. He had shown no remorse. His mother had written a beautiful letter on behalf of her son. “Give him something that I can live with, please,” Diane Bostic had begged Baker that day. But Bostic had written to Baker, too. Several letters, in fact. They were supposed to explain his behavior, to show that he was smart and had potential in life. He quoted Marvin Gaye and Malcolm X and said that God was on his side. He also indulged in some shameless flattery. It didn’t work. All Baker could see was an arrogant punk who refused to take responsibility for his actions.

A trust in God is a surprisingly common thing amongst criminal defendants, especially the guilty ones. For reasons that can’t be rationally explained, they believe that their deity will show special favor on people who commit crimes against others. It’s not mercy, exactly, but that “the lord will find a way” to relieve them of the consequences of their acts. Their god loves drug dealing? Beats me.

Whatever relationship Bobby Bostic had with his God didn’t help him that day.

“Mr. Bostic, I sat through this trial, I saw your family every day of the trial,” she began. “I saw them beg with you, plead with you, try to convince you into entering a plea of guilty in a case in which the evidence was overwhelming.” Bostic had ignored them. “You don’t listen to anyone,” Baker went on. “You write me these letters. It’s the victim’s fault. It’s the police’s fault. It’s your mother’s fault. It is your fault. You put yourself in the position to be standing in front of me facing 241 years in the Department of Corrections. You did it to yourself.”

Baker would make an example out of him. “I hope this will be a message to the other young men and women out there,” she said. She imposed the sentences consecutively, the practical equivalent of life without parole.

One of the “legitimate” considerations for sentence is general deterrence, the “sending a message” argument. It sounds totally reasonable, but it’s mostly nonsense. People inclined to harm others don’t engage in a rational cost/benefit analysis before choosing crime, so the only people who get the message are the ones who don’t need it or want to believe it will make a difference. But it doesn’t. It’s just an excuse, and Judge Baker used it.

It wasn’t that the judge was constrained by mandatory minimums. In technical law-talking parlance, she whacked him. She could have imposed concurrent sentences for his multiple crimes, the sentences for each to be served at the same time. Instead, she imposed consecutive sentences each to be served after the completion of the one before. 241 years. It was the death penalty, albeit the slow one.

Twenty years later, Judge Baker is retired from the bench and Bostic is 39 years old. He will be eligible for parole when he turns 112. He’s grown up in prison, earned certificates, improved himself. His sentence is now called “inhumane” in a Post-Dispatch editorial.

Baker remembered Bostic’s case “like it was yesterday,” she said. “It sticks out because he was so young.” Although he had not killed anyone, she felt he might, eventually. “This young man came off as being a total sociopath at the time.” Baker said she does not regret sentencing him so harshly.

And yet, when asked if she would have done things differently?

“If I knew then what I know now, of course I would have.”

The ACLU is arguing that Bostic’s sentence violates Graham v. Florida, which “prohibited life without parole sentences for defendants convicted of nonhomicide crimes committed as juveniles.” But Judge Baker’s sentence of 241 years was imposed when she was angry.

Her more deliberate reaction now, after the passage of 20 years, sounds nice, but reveals the lie, particularly when she claims she has no regrets while conceding her extreme harshness was wrong in retrospect. The ability of a person to rationalize why it was right then, even if it’s not right now, allows them to sleep at night no matter how wrong they were. But it’s still a lie.

The time for the judge to be dispassionate rather than a slave to anger was when she imposed that death sentence. Now it’s too late.

I am now retired, and I deeply regret what I did. Scientists have discovered so much about brain development in the more than 20 years since I sentenced Bostic.

While it’s good that Judge Baker has found religion, was it a mystery 20 years ago that teens do stupid stuff, behave immaturely, don’t always think and act like adults? Or is that just the rationalization for an emotional decision that now, in the cold light of retrospection, seems very wrong, injudicious and cruel?

It’s nice that Judge Baker now regrets her decision. But it would have been a lot more meaningful if she had done so 20 years ago, before she reacted in anger.

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13 thoughts on “Sentencing Regrets, Too Late (Update)”

I think, this morning, you are not thinking probabilistically. At the time of sentencing, Judge Baker believed that the defendant was and would always be a threat to others. She could not know that with certainty, no one can. It was her job at the time to make her best estimate of the threat and sentence accordingly. That she was wrong in this case is no indictment of her estimate at the time. It is entirely reasonable for her to look at the facts today and say, “the present was a low-probability future at the time the estimate was made”. She would have done things differently if she had known the future, but she didn’t know the future. What should she regret?

I wish I had invested in bitcoin when I first heard of it, but I didn’t. I don’t regret it, though.

Shhhhh. Damn, Pa. Don’t let them know which parts are smoke and mirrors. It’s all part of the mystique of the “rule of law.” Once lines are drawn they must stay there unless you can explain why the line should be elsewhere, I guess.

Do judges keep records and keep doing what works and stop doing what does not work? My impression is that they only know about sentences that don’t work. That would be like a drunk walking into a lamp post. I hope it is not that bad.

There is an even darker explanation than voodoo. Voodoo implies some form of structured belief even if a bit crazy.

The truth is we judges (and I am a perfect example) have reptilian brains. Woe unto those who are sentenced when a judge’s most primitive reactions are stimulated. Not infrequently when we give into those dark impulses–and we do consciously give in–our extreme sentences are expressed in rationalized righteousness.

What’s the cure? There is none. It helps, however, to remember the Greeks and the golden mean.

But isn’t that exactly what parole is for? Serve time, then if he is determined to still be a danger, deny parole. But if he is reformed and there’s a solid chance he’ll be an upstanding citizen, give him a chance on the outside.

But when, as in this case, you are not eligible for parole until after you’re dead what good does it do?

I’m sure SHG will have something to say about this, and it would never fly in today’s environment, but perhaps we should have some sort of statutory maximum that a convict cannot be sentenced beyond some span of years after which the sentence is suspended and they are allowed parole. If they violate parole they go back in for the rest of their sentence.

I realize there are all kinds of problems with this proposal, most of which I don’t know enough to see, but it is just an idea thrown out on the wind probably never to see any real consideration.

I’m reminded of the story of the judge (I believe Federal Judge Kenesaw Mountain Landis) who handed down a heavy sentence to an offender and was leaving the bench when the defendant called out “Judge, I can’t do that much time!”. The judge paused and said softly “Well, do the best you can”.

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Scott H. Greenfield

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